Citation Nr: 0701441
Decision Date: 01/18/07 Archive Date: 01/25/07
DOCKET NO. 05-16 809 ) DATE
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)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for subfoveal choroidal
neovascular membrane, left eye.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs
Commission
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. T. Sprague, Associate Counsel
INTRODUCTION
The veteran had active service in the United States Army from
November 1979 to March 1980, from September 1980 to August
1983, and from February 2003 to October 2003.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2004 rating decision
issued by the Department of Veterans Affairs (VA) Regional
Office (RO) in Jackson, Mississippi.
The veteran was afforded a hearing before the RO in August
2005. A transcript is associated with the claims file.
The veteran was scheduled to appear at a Video Conference
Hearing before the undersigned Veterans Law Judge but failed
to report as requested. As such, the request for a hearing
is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2006).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
In December 2002, prior to the third and last period of
active duty for the veteran, he was diagnosed with a
subfoveal choroidal neovascular membrane in the left eye, an
incurable condition which has made the veteran legally blind
without the use of corrective lenses. The veteran is a non-
commissioned officer in the U.S. Army Reserve who was
activated from February 2003 until October 2003 to augment
regular forces in the ongoing Global War on Terror. The
veteran contends that his left eye disorder was aggravated
beyond the natural progression of the disease process by this
relatively recent period of active service.
The record indicates treatment for the veteran's eye
condition on several occasions in the summer of 2003 by the
veteran's private ophthalmologist. Of particular note is a
clinical report of August 2003 which "show[ed] a regrowth of
the lesion around previous laser [surgery site] within the
subfoveal area." Also in this report, "surrounding leakage
was noted" in the veteran's left eye. The veteran's service
medical history for this time period also indicates a "new
growth" on the veteran's left eye as of September 2003.
Since separation from his last period of active duty, the
veteran was afforded a VA examination for the purposes of
determining the nature and etiology of any present disorder
of the left eye. Upon the June 2004 examination, it was
noted that the veteran's visual acuity was 20/400 uncorrected
and 20/20 corrected for the left eye. A macular scar
secondary to an idiopathic subretinal neovascular membrane
was also noted. The examiner's impression was that the
disorder was idiopathic in nature, and that due to the
condition, the veteran was legally blind. While this opinion
confirms the existence of a current left eye disorder, it did
not address the question of whether it was incurred in or
aggravated by active service.
In view of the foregoing, the veteran was scheduled a second
VA examination in March 2006, to include obtaining a medical
opinion on whether the eye disorder was aggravated during
service. In the report of this examination, the veteran was
found to have a macular scar on the left eye, with an onset
prior to his reporting for active duty in February 2003. The
disorder was noted to have arisen from "no identifiable
reason" and because of that, could "worse[n] at any time
for no identifiable reason." The examiner felt that because
the disease included gradual healing and worsening, with the
latter occurring for no apparent reason, that he could not
tie the disorder to any incident or event in service which
would have aggravated the disorder beyond the natural disease
process.
With respect to a claim of in-service aggravation of a
preexisting disability or injury, 38 U.S.C.A. § 1153 provides
that such a disability "will be considered to have been
aggravated by active . . . service, where there is an
increase in disability during such service, unless there is a
specific finding that the increase in disability is due to
the natural progress of the disease." 38 U.S.C.A. § 1153;
accord Joyce v. Nicholson, 443 F.3d 845, 847 n.1 (2006)
(discussing the presumption of aggravation when disability
noted at time of service entry); 38 C.F.R. § 3.306(a). This
"presumption of aggravation is not applicable unless the
pre-service disability underwent an increase in severity
during service," Paulson v. Brown, 7 Vet. App. 466, 468
(1995); accord 38 C.F.R. § 3.306(b) ("Clear and unmistakable
evidence (obvious or manifest) is required to rebut the
presumption of aggravation where the pre-service disability
underwent an increase in severity during service"); that is,
the presumption of aggravation may be rebutted only if it can
be shown by clear and unmistakable evidence (i.e., evidence
that is "undebatable") that the veteran's service did not
aggravate the preexisting injury. Cotant v. Principi, 17
Vet. App. 116, 132 (2003); accord Maxson v. West, 12 Vet.
App. 453, 460 (1999). In addition, mere "'temporary or
intermittent flare-ups during service of a preexisting injury
or disease are not sufficient to be considered 'aggravation
in service' unless the underlying condition, as contrasted to
the symptoms, is worsened.'" Beverly v. Brown, 9 Vet. App.
402, 405 (1996), quoting Hunt v. Derwinski, 1 Vet. App. 292,
297 (1991); accord 38 C.F.R. § 3.306(b) ("Aggravation may
not be conceded where the disability underwent no increase in
severity during service on the basis of all the evidence of
record pertaining to the manifestations of the disability
prior to, during and subsequent to service").
Based on information of record, the Board does not dispute
that the veteran's left eye symptoms underwent an increase in
severity while he was on active duty. The question, however,
remains as to whether the underlying left eye condition
chronically worsened during service beyond its natural
progress. The most recent March 2006 VA examination resulted
in an opinion that there is no confirmed incident or event of
service which would support aggravation. The evidence of
record fully supports the finding that the veteran's
condition is idiopathic, but it does not address the question
of whether, even in the absence of a specific incident (e.g.,
trauma), the veteran's underlying eye disorder worsened
beyond its natural progression during service. The Board
therefore requests that the examiner who conducted the March
2006 VA examination, if available, provide an addendum to the
record addressing this issue.
Accordingly, the case is REMANDED for the following action:
1. Ensure that all notification and
development actions required by 38
U.S.C.A. §§ 5102, 5103, and 5103A (West
2002) are fully satisfied.
2. Return the claims folder to the
examiner who conducted the March 2006 VA
examination, if available, for an addendum
opinion on the following:
Following a review of the relevant
medical records in the claims file, the
examiner is asked to opine whether the
exacerbations of the veteran's subfoveal
choroidal neovascular membrane of the
left eye during service represent a
chronic worsening of the underlying eye
condition and if so, whether such is
beyond the natural progress of the
disease irrespective of an absence of
trauma or other known cause. In other
words did it worsen more than one would
expect for this type of disease.
Because of a different legal standard
that applies to cases such as this one
involving possible aggravation, and given
the clear indication that the left eye
disorder increased in severity during
service, the central question is whether
it is undebatable that the veteran's
preexisting left eye disorder was not
aggravated beyond its natural progression
during service.
The examiner is asked to provide a
rationale for any opinion expressed and
if no such determination can be made
without resort to speculation, the
examiner should so state.
3. After the development requested above
has been completed to the extent possible,
re-adjudicate the claim for service
connection for subfoveal choroidal
neovascular membrane of the left eye, with
consideration of all of the law and
regulations governing aggravation of a
preexisting disease. See 38 U.S.C.A.
§ 1153; 38 C.F.R. § 3.306; VAOPGCPREC 3-
2003. If the benefit sought on appeal is
denied, the appellant and representative
should be furnished a supplemental
statement of the case and given the
opportunity to respond.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of the veteran's appeal.
38 C.F.R. § 20.1100(b) 2006).